Impeachment, the 25th Amendment or neither?

Sunday

May 21, 2017 at 12:01 AMMay 21, 2017 at 9:21 PM

It's too early to talk seriously about Presidential impeachment. Increasing reports about apparent obstruction of justice or enrichment of Donald Trump's own and family businesses in violation of the emoluments clause are still at the fact-gathering stage, especially now that former FBI Director Robert Mueller … Continue reading →

aronsbarron

It's too early to talk seriously about Presidential impeachment. Increasing reports about apparent obstruction of justice or enrichment of Donald Trump's own and family businesses in violation of the emoluments clause are still at the fact-gathering stage, especially now that former FBI Director Robert Mueller has been named Special Counsel to investigate all things Russian. Building a case for impeachment could take a long time.

That prompts us to reflect on the applicability of the 25th Amendment, which permits the removal of a President for the “inability to discharge the powers and duties of his office.' The case seems simple. As NY Times columnist Ross Douthat put it, Donald Trump is sadly deficient in the basic elements of fitness: “a reasonable level of intellectual curiosity, a certain seriousness of purpose, a basic level of managerial competence, a decent attention span, a functional moral compass, a measure of restraint and self-control.' Add to that a possible clear and present threat to national security, and it would be a relief were the 25th Amendment a clear way out.

The problem is that the 25th Amendment requires the Vice President and a majority of Cabinet members to declare the President unable to discharge the duties of office and name the Vice President as Acting President. If, after they notify the House and Senate, the President fights the declaration, it must be followed by a two-thirds vote of both Houses of Congress. It's hard to imagine Mike Pence (typically standing at press events standing behind the President nodding affirmatively like a bobble-head doll) ending his role as sycophant-in-chief. The same can be said of a majority of the toadies in the Cabinet (Betsy DeVos, Scott Pruitt, Rick Perry, Ben Carson, Jeff Sessions, Tom Price, Mick Mulvaney, Wilbur Ross, perhaps even National Security Adviser H. R. McMaster).

House and Senate leadership are also wimps. While many rank-and-file Republicans in potentially swing districts are anxious for their own skins, Senate Majority Leader Mitch McConnell has said limply that he just wants a little less drama from the White House. House Speaker Paul Ryan, while appropriately saying we need all the facts, still says he has confidence in the President, despite Trump's having shared intelligence with the Russians and having leaned on former FBI Director James Comey to let up on the investigation of “the Russian thing.”

So far most of Trump's base is holding strong. But one after another revelation, on an almost daily basis, has even many loyalists worried. Trump famously said his people would stand by him even if he shot someone in broad daylight. What might tomorrow's news bring?

In 1974, when Richard Nixon's end was near, a majority of House Republicans still refused to support any of the Articles of Impeachment. It will not be easy motivating the current brood to do the right thing, unless they view it in their narrow self-interest and have a rationale for action.

Could medical issues provide cover, giving Trump's cabinet, members of Congress, (and their constituents) a face-saving way to support 25th Amendment action? His 2016 medical disclosure was laughably incomplete. Might there now be some objective demonstration that he has some physical or mental disorder making him unfit, indeed dangerous, to himself and the country? Their actions could then be seen as merciful, taking away the burdens of office from an otherwise well-intentioned person who sincerely wanted to make America great again. Trump's father suffered from Alzheimer's Disease. Ronald Reagan apparently suffered with it during his time in office. There is no shame or blame attached to its sufferers, just sympathy and compassion. If illness were a real consideration, Trump himself would be free to return to his business interests, where his grandiosity, self-dealing, paranoia and limited intellect would find a more natural home.

The press has a long history of acquiescing to cover-ups of serious presidential health problems. Think Woodrow Wilson, Franklin Roosevelt, John F. Kennedy. Today, we decry such collusion as failure of professional responsibility and derogation of the public's right to know. Reporters covering the White House know that they must report what they are hearing and able to verify. Digging into health issues, of course, flies in the face of legitimate concerns over the privacy of medical records.

The alt right (e.g., Alex Jones and Roger Stone) recently produced a video claiming talk about impeachment or activating the 25th Amendment to declare Trump unfit is all part of an establishment conspiracy to take down the unconventional person who is succeeding is breaking up the bad old way of doing this.

Notwithstanding the difficulties, columnists like the NY Times' Ross Douthat are feeding hopes about the 25th Amendment, based on Donald Trump's patent inability to discharge the powers and duties of his office. As he writes, “It is not squishy New York Times conservatives who regard the president as a child, an intellectual void, a hopeless case, a threat to national security; it is people who are self-selected loyalists, who supported him in the campaign, who daily go to work for him.”

But the reality is that the 25th Amendment leaves the President a lot of maneuvering room, including the ability quickly to fire “disloyal” cabinet members and replace them with more rubber-stamp types. By the time the political maneuvering and court challenges play out, the case for impeachment may be ripe. Plus, as the Wall St. Journal's Brian Kait reminds, “because impeachment requires only a simple House majority, it is easier for the President to defeat a Section 4 action than to avoid impeachment.”

It's of no little significance that Trump White House lawyers are reportedly researching impeachment procedures “out of an abundance of caution.”

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